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White House Briefing. Confirmation Hearing for Neil Gorsuch. Aired 2:30-3p ET
Aired March 21, 2017 - 14:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
QUESTION: Thank you, Sean. Thank you, Kaitlyn.
I have two questions. First, the author David Horowitz in his book "The Big Agenda," writes of what he calls, quote, "a deep state," end of quote, in which he said these are Obama holdovers in government who are trying to undercut the president's agenda.
This has been widely repeated on social media. Does the president himself believe in this deep state?
SEAN SPICER, WHITE HOUSE PRESS SECRETARY: Well, I've asked this -- been asked this question before. And I'll give you the same answer I've given before, which is I think there are people that burrow into the government after an administration. This is going back since the beginning of time. They used to call it "ramspecking." It's suddenly no longer permitted, but, you know, in terms of that same way.
But this has been going on since the country was -- country came to be, where people burrow in after an administration into a civil servant job. But sure, that there's people after eight years of Obama that found their way into government. So it should be no huge secret.
QUESTION: Yes. My other question on...
QUESTION: Oh, yes.
SPICER: Oh, Google it.
QUESTION: I remember ram -- I remember when...
SPICER: You've never seen my spelling? Come on.
(LAUGHTER) Ramspecking -- it was named after a -- I mean, we're going to go through a history lesson here, guys.
SPICER: Thank you.
QUESTION: My other question was over the weekend, Governor Graco Ramirez, the head of the Mexican Governors Association, was again in Washington. And in a much-publicized statement, said that Mexico had scored its first victory over the proposed wall. He said that in the president's budget is a line item for $2.6 billion...
SPICER: In F.Y. '18.
QUESTION: ... in tax dollars, and no mention of Mexico paying for the wall in any way. He's claimed a victory in that. Your response to Governor Graco Ramirez?
SPICER: It's a little early to be claiming victory. I think the president's made it clear that -- that he was going to use the current process to start the construction of the wall. And that he would -- that there would be ways that -- which that fulfillment of that pledge would come through.
QUESTION: Thank you.
The administration and the president have repeatedly said that over the next few weeks, they will present evidence that he was wiretapped. And last week, he said it would be coming this week and he may speak on it this week.
Can we expect the president to this week present evidence he was wiretapped by Barack Obama? Or will he speak about it? Because he didn't mention it last night in his rally (inaudible).
SPICER: Right. Well, let's see how the week goes.
QUESTION: Sean, when we've heard from the president before talk about the need for this healthcare plan to pass, he's talked about the important nexus with tax reform and the rest. At what point do you think that this agenda could be imperiled, as you've looked at the vote counts? Because you're also going to have a further fight, of course, to get any of this through the Senate?
SPICER: Sorry -- so at what point will the vote count...
QUESTION: This seems to be such a centerpiece for the rest of the president's agenda. So, given that it's still not any -- there's no certainty in terms of passage at this point, I mean, how concerned are you that Thursday could imperil the president's agenda?
SPICER: Well, I think it's -- I mean, the president's visit this morning was very well received. I think we'll continue down the path to get the votes. We've got a ways to go. We've got to get to the Senate next. But I think members understand that this is -- this is something that has been at the heart of what Republicans have campaigned on. I feel -- excuse me -- I feel very good headed into this.
The president continues to talk to members and we're going to make sure that we grow the vote as much as we can. But with respect to the rest of the agenda, I think all of the issues that the president campaigned on are things that the House and the Senate both look forward to taking up.
There is -- whether it's trade or immigration or comprehensive tax reform, all these issues are stuff that many Republicans have campaigned on for a long time and are eager to get going. The president has made it very clear, as he did last night as well, that, look, part of the -- we've got to keep moving along if we want to get big things done.
There's a lot that can get done during this administration, during the first term. And he wants to get as much of it done as possible. And so the quicker we get repeal and replace done and put the American Health Care Act in place, the better. And that's -- I mean, that's just the nature of it is.
But I think when you look at the speed in which we've moved, it's been very responsible. We've allowed the committees to do their -- work their will. The House has taken up the amendment. It's been online. I mean, so this is -- I think you've got to -- there's always a balance between jamming it down and getting it done and over it, which is how the Democrats operated at one point when they finally moved on their bill, versus how this is done.
But I think we've struck a very nice balance on this.
QUESTION: At which point will it be Trumpcare? The president said today it could happen, when we asked during the (inaudible).
SPICER: We'll have to see. I -- right now, it's the American Health Care Act and we're trying to get it done.
QUESTION: (inaudible) questions.
First, the Kansas legislature is on the verge of possibly passing a Medicaid expansion and the current version of the healthcare bill does not allow states to pass that and so I'm wondering, as you know most legislatures are currently meeting across the country, what would be an exception for states if they expand before any new bill comes?
SPICER: I -- it -- it would be addressed in the legislation. I don't believe there's an exception clause so I don't -- but I also don't -- it would be -- far be it for me to say, at this point, I mean the bill's getting ready to move to the House, the legislatures meeting.
I don't want to prejudge the outcome yet but I don't believe, from my understanding that there's any kind of like clause that says, if.
QUESTION: And then secondly, tomorrow you mentioned the Congressional Black Caucus, is there a specific topic, healthcare, five (ph) topics, what can you tell us about the president's message to them and -- and how did it come about?
I know there's been some back and forth on getting a meeting going, how did that come about?
SPICER: She -- April's (ph) -- April's (ph) about to..
QUESTION: I'm not (inaudible)
SPICER: OK. Don't drag April (ph) into this.
This has been something that the president's talked about for awhile, he met with Congressman Elijah Cummings, it started off in a phone call probably a month or so ago where they discussed prescription drugs and the need to get it down.
And then the conversation continued, our legislative affairs team early on went to some of their meetings and started having a dialogue with them and that dialogue continued.
And there was a desire to have a meeting, the president wanted to have them down. I think there's going to be a range of issues that get discussed that range from drug prices to infrastructure investment and education, HCBUs.
They'll be a range and I think that's -- that's part of it, there's no set agenda to say, we must talk about these things.
And obviously I think healthcare's going to come up too. The president wants to get their idea.
Before April (ph) jumps out of her seat we'll give her...
QUESTION: Thank you for giving me a follow up. I want to follow up on the CBC and I have another question on another subject.
So, with the CBC, since you're saying you -- you went through all of this prior to the fact that he (ph) became (ph) president, that there was an effort to reach out to the CBC.
So with all of this understanding that they are an important group to deal with in handling some of the issues, the urban issues or issues that pertain to their community, how does the president plan to move forward in work with them, particularly as some just don't see eye to eye with them -- with him?
SPICER: I think part of this is -- it's -- it continues to have a dialogue April (ph).
I mean it's simply sitting down with people, talking about issues, talking about common ground. I think if you look at the conversation that he began and continued with Congressman Elijah Cummings, they found common ground. The president talked about areas where, despite some of the narratives that are out there, there were issues that they probably both share concern for and that they can work on together.
And maybe they won't agree on 100 percent or 60 percent but maybe there's 15, 20 or 30 percent of the issues, maybe there's one bill in particular that they can work on.
But there's a willingness to sit down and talk and I think that's the first step in the process of any of these. It's not just your own party and the president's shown this on several of these meetings where it's not just business leaders he's brought in the union leaders.
He (ph) talked about healthcare yesterday, he had Dr. Ezekiel Emanuel in, it's not about just bringing in people who agree with you. It's about people, across the spectrum, who can offer ideas.
And the president's, you know -- and I get it that inner-cities aren't exclusive, the rebuilding of inner-cities aren't the only issue but he's talked about -- he's elevated the status of historically black colleges and universities, bringing that office into the White House to help coordinate some of the federal government activities.
He's talked about rebuilding the inner-cities, he's talked about school choice, a lot of issues...
QUESTION: Law and order (ph).
SPICER: Law and order. And healthcare -- and there's issues that impact urban areas, minority communities, whether they live in -- in rural areas or urban areas.
But I think that that dialogue needs to continue because it can only help and I think that that's what we look forward to tomorrow.
QUESTION: And second subject, as you're talking about bringing in groups, you're also bringing in truckers and there is a concern in the trucking industry about something called E-Logs that's going to happen at the end of the year where truckers, be it truckers with commercial trucks or mom and pop businesses, all of them are going to have to have computers to log in to monitor the time you drive, the stopping (ph) speed, etcetera.
And many people are saying that it cuts into their income, where does the president stand on that? And I know he's being (inaudible).
SPICER: Yeah, I think -- let's -- let's see if that comes up in the meeting and I'll have a read out but I know... QUESTION: (OFF MIKE)
SPICER: I understand. That's more of a DOT issue so I would refer you to the Department of Transportation.
QUESTION: (OFF MIKE) They're (ph) very concerned about it, would he at least...
SPICER: I understand that and I hope that that comes up.
Jeff Mason (ph).
QUESTION: Sean, a follow up on the DHS (ph) airline issue, if there's a danger to Americans or to flyers generally with having laptops or things that are bigger than a cell phone in planes from those 10 countries, why would that not also be a danger from other countries?
SPICER: As you can imagine, I can't talk about the - the intelligence that we have.
I can just tell you that the steps that are being taken are appropriate commensurate with the intelligence that we have and then refer you to the Department of - of Homeland Security and specifically the Transportation Security Administration.
QUESTION: And one other question (ph).
SPICER: Okay - everyone got two.
QUESTION: The presidents traditionally issue a greeting on - to those celebrating the Iranian New Year, Nowruz, will President Trump be doing that today?
SPICER: Let me get back to you I know that - I don't want to get ahead of myself on that but we - we may have something for you later. I've got to - I've got to check on that.
But thank you guys very much. Let's get back to watching Neil Gorsuch and I will see you tomorrow. We're going to have a week full of briefings, I'm excited.
And, by the way, I am very happy that - that the individual in the press corps who took Tom Brady's jersey - that that has been returned properly.
Another bad on the press but we have righted that wrong.
WOLF BLITZER, CNN ANCHOR: All right, Sean Spicer wrapping up his daily press briefing. Let's go right back to the Senate Judiciary Committee. The Supreme Court nominee, Neil Gorsuch, answering questions from Republican Senator Mike Lee.
SEN. MIKE LEE, (R), UTAH: When you say fair, you're not talking about fairness necessarily in some abstract ethereal sense, in some Solomonic way in which you are just being wise in your own mind. I -- you -- you -- you were being fair in a manner that is consistent with and dictated by your judicial oath.
And your oath to uphold and protect and defend and operate within, subject to the constraints of the United States Constitution, a Constitution that puts the power to prescribe laws with perspective general applicability in the political branches of government, in the legislative branch and in the executive branch.
And so far the executive is involved in the law making process and then in so far as the executive is involved in the execution of those laws. The judicial branch on the other hand is there to give effect and meaning to those words. Not just based on what is fair in some abstract sense but also what is fair in the sense that you've got to decide who the decision maker is.
Who makes the law and how to give effect to those words. One of the many cases that comes up from time to time is one called TransAm Trucking v. Administrative Review Board. You wrote in that case, it might be fair to ask whether TransAm's decision, meaning the decision to fire the driver in question, was a wise or a kind one.
But then you say, it's not our job to answer questions like that. So you don't have to respond to this but -- but I'm going to tell you how I interpret the language that was an issue in that case. As -- as someone who has served as a law clerk in the federal judiciary and as someone who has litigated cases.
If I were involved in that case, a case in which the judge wrote those words, I might think to myself regardless of whether I like the law and regardless of whether I like the decision made by the employer in that case, this is a judge who is bound by the law and is acknowledging as much in his opinion.
So I'd like to ask about the law in that case -- in the -- in the TransAm Trucking case. The applicable statue said that you cannot fire someone for "refusing to operate a vehicle." Is that consistent with your recollection?
GORSUCH: Sitting here, that's my recollection.
LEE: In that case, the trucker was fired because he operated his vehicle, the vehicle he was assigned to, against company orders. Is that a fair summary based on what you remember from that case?
GORSUCH: Yes, Senator. LEE: So one could argue -- and I think -- I think could argue
conclusively, and I think it was argued and decided in that case that this was a fairly clear application of the law. Because if -- if -- if what the law said that the person couldn't be fired for refusing to operate a vehicle.
In that statue we're being invoked not in a context where the person was fired for refusing to operate a vehicle but where in fact the person operated a vehicle. Those are two different things, aren't they?
GORSUCH: I thought so, Senator. That was my judgment in that case.
LEE: Dickens wrote that the laws an ass. And sometimes you might encounter cases where that's true. Sometimes you can look at those who make the laws and say, exhibit A, your honor, as to why this law is an ass.
But it's not your job to rewrite the law. It's not your job to write it in the first place and it's not your job to rewrite it after the fact, is it?
GORSUCH: I don't believe so, Senator.
LEE: You had another case under the same statute that was involved in the TransAm case. It's a 2007 case called Copart Inc. (ph) v. Administrative Review Board. In that case, a trucker had been fired for refusing to drive a truck that he considered unsafe. You wrote an opinion ruling in favor of the trucker and awarding him attorney's fees, is that right?
GORSUCH: Senator, your recollection is better than mine on the attorney's fees issue.
LEE: What's don't (ph) always award attorney's fees, but as I recall and the court did in that case.
So, I don't -- don't really understand the argument that some are making or the implication that some are trying to raise, that you were somehow unfair in the TransAm case, because after all, in the TransAm case, you applied the law, it didn't apply in the way the terminated employee wanted it to apply in that case, but you applied it fairly in the other case.
I also wanted to bring your attention to another case that's been mentioned by some of my colleagues, and that's the wrong case. It's the case where a professor with cancer wanted to extend her leave. The University said no and the professor sued. The panel ultimately concluded that the law required her to show that she could continue to perform her job if the University provided an accommodation. And all the parties in that case agreed that she could not, that she couldn't continue to perform it. That, as I recall, was a unanimous opinion, is that correct?
GORSUCH: Senator, that was another very hard case to go home after. The individual there had -- was sick, very sick. And had given I think six months off I think already, if I remember correctly. And I can't remember if it was the University of Kansas or Kansas State. And then she was asking for another six months off. And the University said no. And she sued under the Rehabilitation Act, which prescribes that reasonable accommodations must be provided to workers to perform their essential job functions. But to prevail, they have to show they can perform their essential job functions.
It was undisputed in that case, she just couldn't, through no fault of her own. And the District Court said that's just not a claim under the Rehabilitation Act -- maybe for a breach of contract, maybe something else -- but not under Federal Statutory law. That's my recollection sitting here.
And my panel, three judges, unanimously agreed that that was the correct application of the law and those facts. No one is here to say that love the law in every case and the results it yields. I'm here to say that I promise to apply the law faithfully and I can guarantee no more promising no less than that, Senator, in every case.
LEE: If I'm remembering that case correctly, Judge Lucero was on that panel with you, is that right?
GORSUCH: I don't recall. I will check to make sure, I think he was and Judge Lucero was not nominated by a Republican President. Judge Lucero is one of my dear friends and colleagues and he was appointed by President Clinton. That's true, an excellent judge.
LEE: So, if you were wrong in this case, then so was he. You did right in that case also, something that I thought showed a fair amount of reflection on the plight of the plaintiff in that case, writing quote, "By all accounts, the plaintiff was a good teacher, suffering a wretched year" closed-quote, indicating that you were aware of her plight. This is hardly the kind of statement made by a judge who is unsympathetic. This is in context the kind of statement made by a judge who understands the deeply human context of every case, and also understands the deeply sacred nature of the oath you took to uphold and protect and defend the Constitution of the United States and to operate within the constraints of the Constitution.
For that, I thank you and I respect you.
GORSUCH: Thank you, Senator.
GRASSLEY: Thank you, Senator Lee.
I want to make an announcement that we could take a 10-minute break after Senator Klobuchar. Judge, just so you know the plan, we're going to take that 10-minute break and I hope it won't be 11 or 12 minutes.
KLOBUCHAR: All right. Thank you very much, Mr. Chairman.
Thank you, Judge. As I said yesterday, your nomination comes before us during an unprecedented time in our nation's history. In recent months, foundational elements of our democracy have been challenged and questioned and even undermined. And for that reason, I just can't look at your nomination in the comfort of a legal cocoon.
And I believe we should evaluate your record and philosophy against the backdrop of the real world today.
So starting with something easy with the real world, Senator Grassley and I are leading a bill on cameras in the courtroom. I'm not going to ask you specifically about that bill for federal courts. But a number of your fellow people who are sitting at that table in years past, including Justice Sotomayor, has said that they were open to it and were positive about bringing cameras into the Supreme Court.
And just to give you a sense of why this is so interesting, only a few people can get in there, yet the decisions affect everyone in America. Even just last month, 1.5 million Americans tuned into CNN's broadcast when the Ninth Circuit heard arguments challenging the president's refugee and travel ban.
So what is your opinion on having cameras in the Supreme Court?
GORSUCH: Senator, that's a very important question. I appreciate the opportunity to discuss it with you. I come to it with an open mind. It's not a question that I confess I've given a great deal of thought to. I've experienced more cameras in the last few weeks than I have in my whole lifetime by a long, long way.
And I've got to admit that the lights in my eyes are a bit blinding sometimes. So I'd have to get used to that.
KLOBUCHAR: But would you -- will you favor it or not?
GORSUCH: Senator, I would treat it like I would any other case or controversy. That's what I could commit to you. That I would want to hear the arguments. I know there are justices on both sides of this issue. Right?
KLOBUCHAR: Yeah, I think Justice Souder said "over his dead body" would they have cameras. But I would -- I was hoping that things have changed. I was hoping that things have changed since then, and that we see just more and more interest in these decisions. And I hope that you will remain open to it and will favor it.
My second question, which also pertains to transparency, is a discussion you had with Senator Whitehouse about the federal rules for federal judges in terms of disclosing trips and things like that. And you had said that you hadn't take those trips, but if you had, you would have disclosed them. And I appreciate that.
Do you think that there should be that same kind of federal ethics standards for Supreme Court justices?
GORSUCH: Well, Senator, what I said is I've disclosed every trip that's reportable.
KLOBUCHAR: OK. I'm sorry. GORSUCH: And...
KLOBUCHAR: Yes, but the specific question is on Supreme Court justices.
GORSUCH: Yes. I know that the rules are different. I don't know how different they are. I haven't studied that, Senator.
KLOBUCHAR: Would you favor them having the same set of rules that apply to you right now?
GORSUCH: Senator, what I can -- I'd say two things. First, I have no problem living under the rules I've lived under. I'm quite comfortable with them. And I've had no problem reporting every year to the best of my abilities everything I can. So I can tell you that.
It doesn't bother me what I've had to do. I consider if part of the price of service and it's a reasonable and fair one. I'd also say I don't know what the arguments are. I haven't studied them. And I'd want to commit to you that I'd give it very fair consideration. And I'd want to hear what my colleagues have to say.
GORSUCH: You know, I...
KLOBUCHAR: It's pretty straightforward to me because it applies to the other federal judges. I don't think this is a matter of precedent or what's happened. You are going to be, in the words of Hamilton, if you get confirmed, "in the room where it happens."
And so all we're trying to do is to make this as transparent as possible of what people's interests are. And so I just hope you'll consider that.
GORSUCH: Of course I will.
KLOBUCHAR: I think I'll move on to some of the harder stuff here.
GORSUCH: (inaudible) to you I will consider both of those things.
KLOBUCHAR: OK. Thank you.
On the issue of precedent, I think this idea of an independent judiciary is important now more than ever. So I want to start with that. When you accepted the president's nomination, you said "a judge who likes every outcome he reaches is very likely a bad judge." And in your book, you said again that "good judges often decide cases in ways antithetical to their own policy preferences when the law so requires."
So I want to ask, can you give me an example of a Supreme Court case that you believe was wrongly decided under the law, but that you will continue to follow if you are confirmed because the precedent is so strong?
GORSUCH: Senator, I think that's just another way, honestly, of trying to get at which Supreme Court precedents I agree with and I disagree with.
KLOBUCHAR: I don't think it is. It's about -- it's something that you actually said when the president nominated you, and you said it in public. You said that this is a definition of a judge, that they -- someone who, you know, respects precedent so much that they're still going to enforce the law.
So I just thought there could be one example, even if it's a really old one.
GORSUCH: Well, I think Senator Lee and I were just talking about a couple of cases where the results were not attractive to me as a person, where I followed the law to the best of my abilities. And did so, you know, with my colleagues.
KLOBUCHAR: Yeah, one of the reasons I'm asking this is that several past nominees have made this promise about respecting precedent before this committee. And these are people you respect, justices, and admire. At the same time they said they'd respect precedent, and then they later became justices with a lifetime appointment, and they overturned precedent.
One of those examples is Citizens United. Two past nominees who later became justices stated they'd honor precedent during their hearings, and then they joined an opinion that not only broke from precedent, but gutted a law passed by Congress, releasing this unprecedented wave of money.
So do you view Citizens United at a departure from prior precedent?
GORSUCH: Senator, Citizens United did overrule Austin. So in that respect, it is an example of a court that in part overruled a precedent. And that's part of the law of precedent, too, as we've talked about, that you start with a strong presumption in favor of precedent. That's the anchor of the law. It's a starting point.
But there are instances when a court may appropriately overrule precedent, after considering a lot of factors. And we've talked about them, and I'm happy to discuss them with you again if you'd like. But I don't want to waste your time either. So you tell me.
KLOBUCHAR: So you see this as -- you see this as something where there was precedent that was -- I mean, you go back to Buckley vs. Valeo. You know, parts of that -- yes, we -- you discussed earlier with my colleague, stayed in place, but it overturned parts of that; Austin; McConnell. There were just a number of cases that it overturned.
To us up here, it was a major overturning of precedent. And so that's why we're so concerned when people say, "Oh, we're going to respect precedent," and then they come in and do that. And actually, you've suggested that you would actually go further than Citizens United, and that was in Riddle vs. Hickenlooper, a 2014 case.
And while it was a narrow case about campaign finance caps on individual contributions to major political candidates, the outcome of the case isn't really one I want to talk about. That was all the judges -- I think there was an agreement on the case.
But you alone wrote a concurring opinion, and that's what I want to focus on, suggesting that making a political contribution was a fundamental right that should be afforded the highest level of constitutional protection, which is strict scrutiny.
If the Supreme Court adopts the standard that you suggested, the few remaining campaign finance limitations that we have in place and left on the books could fall. So do you believe that strict scrutiny is the appropriate standard for reviewing campaign finance regulation?
GORSUCH: Senator, I welcome the opportunity to clarify Riddle vs. Hickenlooper. In that case, the law in Colorado allowed individuals to contribute more money to -- to major party candidates than to minor party candidates.
KLOBUCHAR: I know -- I really do. I read the case. I understand that. But I just want to with my limited time focus on that concurring opinion, because that's what the actual opinion said, but then you took it a step further to talk about this possibility.
[15:00:00] You cited an opinion by Justice Thomas in your concurrence, joined by Justice Scalia, suggesting that all contribution limits should be subject to strict scrutiny.
So could you clarify for us, do you --